Jimmy Bromgard v. Yellowstone County

FILED
NOT FOR PUBLICATION NOV 19 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JIMMY RAY BROMGARD, No. 09-35004
Plaintiff - Appellant, D.C. No. 1:05-cv-00032-RFC
v.
MEMORANDUM *
YELLOWSTONE COUNTY; BILL
KENNEDY, Chairman; JOHN OSTLUND
Commissioner; JIM RENO,
Commissioner,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted November 3, 2009
Portland, Oregon
Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.
For a custom or policy of inaction to amount to deliberate indifference
toward constitutional rights and thus be actionable under 42 U.S.C. § 1983, it
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
must be the result of a ‘conscious,’ City of Canton v.
Harris, 489 U.S. 378, 389 (1989), or ‘deliberate choice to
follow a course of action . . . made from among various
alternatives by the official or officials responsible for
establishing final policy with respect to the subject matter
in question.’ Pembaur v. City of Cincinnati, 475 U.S. 469,
483 (1986).
Butler v. Elle, 281 F.3d 1014, 1026 n.9 (9th Cir. 2002) (alteration in original).
Bromgard has presented no evidence that the County made a “conscious” or
“deliberate choice” of inaction “from among various alternatives.” Id. The
evidence demonstrates that the County was not in a legal or de facto position to
hire, supervise, remove or set the compensation of defense attorneys for indigents
in 1987. Thus, under Butler, the County’s inaction cannot amount to deliberate
indifference. Id.
AFFIRMED.
-2-